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PETITIONER: UNION OF INDIA & ORS.

       Vs.

RESPONDENT: BRIJ LAL THAKUR

DATE OF JUDGMENT:       17/03/1997

BENCH: K. RAMASWAMY, G.T. NANAVATI

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Delay condoned. Leave granted. We have heard learned counsel on both sides.      This appeal  by special  leave arises  from  the  order passed on  March 31,  1995 by  C.A.T.,  New  Delhi  in  O.A. No.1801/94.      The post  of E.C.G. Technician in the Grade of Rs.1200- 2040 became  vacant on  November 30,  1993  in  the  Central Hospital, Northern  Railway due  to retirement, Mrs. William Chand, a general candidate, holding that post. For promotion of Theater  Assistants to  the said  post,  trade  test  was conducted in  which Smt. Prakash Kaur belonging to Scheduled Castes and  two others were called. The vacancy to be filled up was reserved for Scheduled Castes in a carry forward post as per the rotation of the roster. In the trade test held on December 8,  1994, Smt.  Prakash Kaur was found suitable and she was  accordingly promoted  as E.C.G.  Technician  w.e.f. December 9,  1994. The  respondent an unsuccessful candidate filed O.A.  in the  Tribunal contending  that since the post E.C.G. Technician  is the  solitary post, reservation as per roster  is   unconstitutional  as  it  would  lead  to  100% reservation. The  contention found favour with the Tribunal. Accordingly, it  set aside  the appointment  by promotion of Smt.  Prakash  kaur  and  gave  direction  to  treat  it  as unreserved post  and to  consider the case of the respondent for  appointment   to  the  post  according  to  Rules.  The controversy is no longer res integra. This Court in Union of India &  Anr. v.  Madhav s/o Gajanan Chaubal & Anr. [JT 1996 (9) SC 320] by a Bench of three judges considered the entire case law  following the Constitution Bench judgments in A.R. Choudhury v.  Union of  India &  Ors.  [(1974)  1  SCC  87], Commissioner of  Commercial  Taxes  v.  D.Sethu  Madhva  Rao [(1996) 7  SCC 512], Venkteswarlu v. Govt, of A.P. [(1996) 5 SCC 167]  and State  of Bihar  v. Bageshwardi Prasad [(1995) supp. 1  SCC 432].  It was held that "even though there is a single post,  if the  Government have  applied the  rule  of rotation and  roster point  to the vacancies that had arisen in the single point post and were sought to be filled up the candidate belonging  to the reserved categories at the point on which they were eligible to be considered, such a rule is

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not violative of Articles 14 and 16(1) of the Constitution". In that  case the  post of Secretary in the National Savings Scheme Service  was a  single point  post to  which 40 point roster was  maintained to the vacancy in the said post. When the Scheduled Tribes candidate was selected for promotion on the basis  the rule of rotation, it was held by the Tribunal that the promotion was violative of Articles 14 and 16(1) of the Constitution. Reversing that order it was held that:      "Thus, the  Government have adhered      to the rule of rotation to a single      post and the 40 point roster to the      single post  was  applied  and  the      vacancy reserved  for the Scheduled      Castes and  Scheduled Tribes as and      when had  arisen, was  sought to be      filled up, when the candidates were      available. Thus,  we hold  that the      roster point  No. 4  in the vacancy      of the  Secretary reserved  for the      Scheduled  Tribes   was  valid  and      constitutional.  When  the  officer      available and  was eligible  to  be      considered, he  was entitled  to be      considered in  accordance with  the      rules and be promoted as Secretary.      The Tribunal,  therefore,  was  not      right in directing that the rule of      rotation to  the single  post could      not be  applied. It  is brought  to      our  notice   that   the   original      promotee    died     pending    the      proceedings and,  therefore as  and      when vacancy  arises as per rule of      rotation as  per  roster  the  same      would be  filled up  in  accordance      with law."      Accordingly, we  hold that  appointment by promotion to the single  post of E.C.G. Technician applying 40 point post and rule  of rotation, consideration of Smt. Prakash Kaur to the said  vacancy is  not violative of Articles 14 and 16(1) of the  Constitution. The  promotion is legal and valid. The Tribunal, there  fore, was  incorrect in  setting aside  the promotion of Mrs. Prakash Kaur.      The appeal  is accordingly  allowed. The  order of  the Administrative Tribunal stand set aside. The petition stands dismissed. No costs.